Environmental Pollution and Common Law Remedies

Environmental Pollution andCommon Law Remedies

V. K. BEENA KUMARI*

The environmental law as it is known today is an amalga-mation of common law and statutory principles. 1 Even beforespecific laws came into force, there were certain common lawremedies against pollution. Common law is the body of custo-mary law of England based upon judicial decisions and is em-bodied in the reports of decided cases. Common law had beenadministered by the common law courts of England since themiddle ages. 2 The term 'common law' is derived from Latin,lex communis.

In common law, pollution cases generally fall under fourcategories. They are Nuisance, Trespass, Negligence and Strictliability. The dominant water law theories and the public trustdoctrine also had influence on the use of staple resources ofwater and land.3

NUISANCE

The deepest doctrinal roots of modern environmental laware found in the common law principles of nuisance. A wellknown writer says that the substantive law for the protection ofthe citizen's environment is basically that of common law relat-ing to nuisance.4

* B.Sc. (Kerala), LL.M. (Cochin).William H. Rodgers, Jr., Hand book on Environmental Law, (1977),p. 100.Encyclopaedia Britannica, (1964), Vol. 6, p. 160.These do not come within the scope of this paper.R. N. D. Hamilton, "Private Recourse for Environmental Harm",

(f. n. contd.)

102 COCHIN UNIVERSITY LAW REVIEW

There is much difficulty in employing tortious actions basedon nuisance as an effective remedy against environmental pollu-tion because of the exhaustive and diverse definitions of theterm "nuisance". 5 "Nuisance" ordinarily means anything whichannoys, hurts or that which is offensive. 6 Nuisance includes anyact, omission, injury, damage, annoyance or offence to the senseof sight, smell, hearing or which is or may be dangerous to lifeor injurious to health or property.'

The failure to distinguish between trespass and nuisance isanother difficulty. The former is a direct infringement of one'sright to property. In the latter, the infringement is the result ofan act which is not wrongful in itself; but the consequences whichmay follow such act infringe the right of other persons.8

Kinds of Nuisance

In common law, nuisance are of two types namely publicand private nuisance. 9 A public nuisance can be defined as anunreasonable interference with a right common to general public.A private nuisance is a substantial and unreasonable interferencewith the use and enjoyment of land.") A public nuisance has beendefined in Section 268 of the Indian Penal Code also."

in Stephen C. McCaffrey & Robert E. Lutz (Ed.), EnvironmentalPollution and Individual Rights: An International Symposium,(1978), p. 19.

See the remarks of Kenworthy, J. in Essick v. Shillam 347 Pa. 373as cited in James E. Krier, Environmental Law and Policy, (1971),p. 90.

Durga Prasad v. State, A.I.R. 1962 Raj. 92.

The Cantonment Act, 1924, Sec. 2 (xxii).

James E. Krier, op. cit., p. 90.

Salmond, The Law of Torts, (8th ed. 1934), p. 233.

Rodgers, op. cit., p. 102.

Sec. 268 of the Indian Penal Code reads: "Public nuisance:- Aperson is guilty of a public nuisance, who does any act or is guiltyof an illegal omission which causes any common injury, danger orannoyance to the public or to the people in general who dwell oroccupy property in the vicinity or which must necessarily cause

(f. n. contd.)

V. K. BEENA KUMAR! 103

The importance of the division of nuisance into public andprivate lies partly in the difference of the remedies and defencesapplicable to each and partly in the fact that a private individualhas no right of action in respect of a public nuisance unless hecan show that he has sustained some "special" damage over andabove that inflicted on the community at large.

In India, public nuisance action can be brought before acourt either by a civil or by a criminal action. Section 91 of theCode of Civil Procedure, 1908 ensures the right of action in thecase of public nuisance. 12 The procedure for removal of a publicnuisance is laid down in Sections 133 to 143 of the Code ofCriminal Procedure, 1973. In England, all civil proceedingsbrought in respect of public nuisance other than a private actionby an individual who or a public or local authority which, hassuffered particular damage or an action brought by a local autho-rity in its own name to protect the inhabitants of its area mustbe brought with the sanction and in the name of the AttorneyGeneral.' 3 A private individual or a public authority may bringa private action on public nuisance in his or its name when andonly when he or it can show that he or it has suffered someparticular foreseeable and substantial damage over and abovethat sustained by the public at large or when the interference

injury, obstruction, danger or annoyance to persons who may haveoccasion to use any public right.A common nuisance is not excused on the ground that it causessome convenience or advantage".

12. Section 91 of the Code of Civil Procedure reads: "Public nuisancesand other wrongful acts affecting the public:- (1) In the case of apublic nuisance or other wrongful act affecting, or likely to affect,the public, a suit for a declaration and injunction or for such otherrelief as may be appropriate in the circumstances of the case, maybe instituted,—

by the Advocate-General, orwith the leave of the court, by two or more persons, eventhough no special damage has been caused to such persons byreason of such public nuisance or other wrongful act.

(2) Nothing in this section shall be deemed to limit or otherwiseaffect any right of suit which may exist independently of itsprovisions".

13. Halsbury's Laws of England, (4th edn. 1980), Vol. 34, p. 136.


with the public right involves a violation of some private rightof his or its own."

The Standard of Liability in Nuisance

Foreseeability is an essential element in determining liabilityfor nuisance. Liability may arise even where utmost care istaken. Although negligence is not an essential element in deter-mining liability, fault of some kind on the part of the defendantis almost always necessary and the fault generally involves fore-seeability. Reasonable foreseeability is the test applied in deter-mining liability for nuisance. For example in the Wagon Mound(No. 2) case, i5 an action in negligence and nuisance was broughtagainst the defendants by the owners of the corrimal which wasbeing repaired in Sheerlegs wharf and was badly damaged by firecaused through carelessness of the defendants in allowing bunker-ing oil to spill from ship into water.The Privy Council held16thatthe outbreak of fire was reasonably foreseeable and the appel-lants are liable in damages."

Reasonableness

Reasonableness of defendant's conduct is the centralproblem in nuisance cases. In nuisance cases, the burdenof proving unreasonbleness is often difficult because the reason-ableness of the defendant's conduct is determined by weighingits utility against the gravity of harm to the plaintiff. In caseswhere the major polluters are large industrial firms, it is oftendifficult to prove unreasonableness in the conduct of their busi-ness having regard to their high economic and social status.I8

Id., p. 135.

Overseas Tankship (U.K.) Ltd. v. Miller S. S. Co. Pty., [1966) 2All E.R. 709.

Id., p. 719.

The decision of the Court in Overseas Tankship (U.K.) Ltd. v.Moils Dock and Engg. Co. Ltd., The Wagon Mound (No. 1), [1961]A.C. 388; [1961] All E.R. 404, was thus overruled in the WagonMound (No. 2) case.

See also the observation of Calabresi, "Some Thoughts on Risk Con-tribution and the Law of Torts", (1961) 70 Yale L.J. 499 at 537-38.

V. K. BEENA KUMARI 105

However, courts have sometimes held that the "relative utility"test is not sufficiently great to bar an injunction.

The common defences in pollution cases are (1) the rightobtained by prescription to pollute, (2) estoppel, (3) compa-rative injury and (4) statutory authorisation. In deciding whethera particular act is or is not an actionable nuisance, the courtmust consider the locality, 19 the nature of the nuisance 20 andother questions of similar nature.

Remedies for Nuisance

There are four classes of remedies for nuisance namelyabatement without recourse to legal proceedings, civil proceed-ings for damage or injunction, summary proceedings for penaltiesor abatement of statutory nuisance and criminal proceedings.21According to Rodgers remedial opportunities often fall into fourbroad categories namely (1) damages (2) land use accommoda-tions, (3) technological accommodations and (4) operationalcontrols.22

The damages remedy is aimed at making whole the plain-tiff's losses by a money judgment. The land use remedy requiresthat one or the other party should relocate. The technologicalaccommodation requires the defendant to instal the best controltechnology and operate it with maximum efficiency. The fourthremedy, the operational controls interfere least with one's enter-prises. It requires only that the conduct of one's enterprise shouldbe with more skill and care or in a different manner or at adifferent time to minimise the harm. The four dominant remedialapproaches are seen combined in the case of Smith v. Staso

19, The importance of the place of the hurt lies in the distinction bet-ween a nuisance per se and a nuisance in fact. A nuisance per se isdefined as an activity, occupation or structure which constitutes anuisance anywhere regardless of how it is operated. A nuisance infact is an activity, operation or structure which constitutes a nui-sance only because of its location or manner of operation. SeeRodgers, op. cit., p. 129.See Rodgers, op. cit., p. 112.

Supra, n. 13 at p. 125.

Rodgers, op. cit., p. 143.


Milling Company 23 where the owner of a summer residence wasbeseiged by water, air and noise pollution from the defendant'scrushing mill. Here each aspect of nuisance was remedied dif-ferently. Courts may allow plaintiff to recover special damagesalso when he suffers loss before tria1. 24 However, the plaintiffcannot secure both a damages judgment for reduced market valuedue to permanent injury to property and an injunction abatingthe cause of the depreciation. In considering the grant of injunc-tive relief, the courts most often will "balance the equities." Thecourts will consider the relative economic hardship 25 which willresult to the parties from grant or denial of an injunction, thegood faith or intentional misconduct of the parties and the publicinterest in the continuation of the defendant's activities.

TRESPASS

Trespass is a theory closely related to nuisance and isoccasionally invoked in environmental cases. Trespass requiresan intentional invasion of the plaintiff's interest in the exclusivepossession of property, whereas nuisance requires a substantialand unreasonable interference with his use and enjoyment of it.No substantial injury need be shown for a plaintiff to succeedin an action for trespass. The only requirement to establish atrespass is that there must be an intentional unprivileged physicalentry by a person or object on land possessed by another. Uponproof of technical trespass plaintiff is always entitled to nominaldamages. The plaintiff could also get injunctivity relief againsta technical trespass. Another advantage of trespass action overan action for nuisance is that an action for trespass has a con-siderably longer statute of limitations. 26

Most of the important aspects of pollution control where

18 F. 2d 736 (1927) cited in Rodgers, op. cit., p. 143.

Lassiter v. Norfolk & Carolina R. R. 126 N.C. 509 (1900) cited inRodgers, op. cit., p. 145.

Boomer v. Atlantic Cement Co., 26 N.Y. 2d 219, (1970) cited inRodger W. Findley & Daniel A. Farber, Environmental Law in aNutshell, (1983), p. 59.

James E. Krier, op. cit., p. 211.

V. K. BEENA KUMAR! 107

trespass is used as the theory of action have been discussed bycourts in many cases.

In Arvidson v. Reynolds Metals Company 27 the courtobserved that aluminium is produced by the defendant plant ina manner that unavoidably caused fluorides to be dischargedinto the atmosphere and recognised that fluorides of some of thetypes escaping from the plants, if ingested in excessive quanti-ties, are capable of causing damage to cattle. Nevertheless thecourt found for the defendants on the ground that large scaleproduction of aluminium is essential to national defence.

In Fairview Farms, Incorporated v. Reynolds Metals Com-pany 28 the court held that air borne liquids and solids depositedupon Fairview land constituted trespass and allowed damagesfor six year period applying the statute of limitations. However,injunctive relief was denied on the ground that pollution was notreasonably certain to be repeated and the defendant had appa-rently done all it could to control the pollution.

In Martin v. Reynolds Metals Company 29 the defendantargued that mere setting of fluoride deposits upon the plantiff'sland was not sufficient to constitute a trespass. The court refus-ing the contention, defined trespass as "the invasion of landowner's right to exclusive possession, whether by visible orinvisible substances". This departure from the traditional defini-tion of trespass would impose a heavy burden on industry.Nevertheless trespass theory is inadequate to control air pollu-tion. The difficulty in identifying the correct source of air pollu-tion in an area, the cost of litigation and willingness of the peopleto accept the status quo etc. tend to discourage the filing of tres-pass suits. A change in judicial attitude can be seen in later cases.For instance, in Renken v. Harvey Aluminium Incorporated "the

125 F. Supp. 481 (W.D. Wash, 1954), aff'd, 236 F.2d 224 (9thCir. 1956), Cert. denied, 352 U.S. 968 (1957) as cited in James E.Krier, op. cit., p. 189.176 F. Supp. 178 (D. Ore. 1959) as cited in James, E. Krier, op.cit., p. 190.135 F. Supp. 379 as cited in James, E. Krier, op. cit., pp. 190-191.226 F. Supp. 169 (D. Ore. 1963) as cited in James, E. Krier, op.cit., p. 177.


court refused to balance the equities before granting injunctionand relied on Martin 31 in concluding that the emissions fromHarvey Aluminium Company were trespassory.

NEGLIGENCE

Negligence is another specific tort on which a common lawaction for preventing environmental pollution can be based. Itis the failure to exercise that care which the circumstancesdemand in any given situation. Where there is a duty to takecare, reasonable care must be taken to avoid acts or omissionswhich can be reasonably foreseen 32 to be likely to cause physicalinjury to persons or property. The degree of care required in aparticular case depends on the accompanying circumstances andmay vary according to the amount of risk to be encountered andto the magnitude of the prospective injury. Where there is noduty to exercise care, negligence in the popular sense has nolegal consequence.33

The act of negligence may also constitute a nuisance if itinterferes unlawfully and for a substantial length of time with theenjoyment of another's right in land or it occasions on the highway a dangerous state of affairs as contrasted with a singleisolated act. 34 Equally, it may also be a breach of the rule inRylands v. Fletcher 35 if the negligent act allows the escape of anon-natural and dangerous thing which the defendant has broughton his land. 36

The causal relation between negligence and the plaintiff'sinjury must be shown by the plaintiff in an action for damages

See supra n. 29."The reasonable man is presumed to be free both from over-appre-hension and from over-confidence . " per Lord Mac Millan inGlasgow Corporation v. Muir, [1943] A.C. 448 (H.L.) at p. 457.Grant v. Australian Knitting Mills Ltd., [1936] A.C. 85 (D.C.) atp. 103; Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) at p. 618.Stone v. Bottom, [1950] 1 K.B. 201 (C.A.) reversed on the issue ofnegligence in Bottom v. Stone [1951] A.C. 850 (H.L.); (1951) IAll E.R. 1078.(1868) L.R. 3 H.L. 330.Attorney General v. Cory Brothers Ltd., [1921] A.C. 521 (H.L.).


based on negligence. When the plaintiff has proved to the satis-faction of the jury the existence of facts which are claimed andoutlined, then a prima facie case of negligence is presented. Itthereupon becomes the duty of the defendant to come forwardwith evidence to show that the act was not negligent.

The causal relation between the negligent act and the injurysuffered is not particularly onerous task when a deadly pollutantlike carbon monoxide is discharged in the air admittedly underthe defendant's exclusive control as in Greyhound Corporationv. Blakley. 37 However, where one brings an action for lungdamage caused by fine dust particles against a local cement plantor glass factory, the case gets extremely difficult from a causationstandpoint.

In Hagy v. Allied Chemical and Dye Corporation, 38 Mrs.Hagy successfully sued the defendant for damages suffered toher larynx when she and her husband drove through smog whichshe alleged to have contained injurious sulphuric acid compo-nents negligently emitted from the defendant's plant. The defen-dant asserted before the appellate court that as a matter of law theevidence was insufficient to permit the jury to find causal con-nection between the smog and Mrs. Hagy's condition. The courtaffirmed the verdict of the court below on the ground that theburden was rather upon the appellants to convince the jury thatthe operation would have been ultimately necessary in any event,eventhough the cancerous larynx had not been traumatized bythe irritation of the smog. In Suko v. North Western Ice andCold Storage Co., 39 a water tank maintained by the defendantburst and dropped a large quantity of water upon the plaintiff'sadjoining land and caused personal injury to the plaintiff. Herethe Oregan Supreme Court did not adopt the so called Rylandsdoctrine. The court adopted the pure and simple rule of negli-gence with the test of ordinary due care and gave the plaintiff

262 F. 2d 401 (9th Cir. 1958), as cited in James E. Krier, op. cit.,p. 169.122 Cal. App. 2d 361 (1954), as cited in James E. Krier, op. cit.,p. 169.166 Or. 557, 113 P. 2d 209, as cited in James E. Krier, op. cit.,p. 154.


the benefit and evidentiary aid of the so-called res ipsa loquitorthat the instrumentality which caused the injury was in theexclusive possession and control of the defendant. ReynoldsMetals Company v. Y turbide" leaves the "standard of care"question unanswered. However, in Ure v. United States 4I wherethe plaintiff was injured by over flow of water from the irrigationcanal maintained by the defendant, the court observed that avery high degree of danger calls for a very high degree of care.The dangers caused by environmental pollution are often poten-tial dangers difficult to evaluate. Moreover the standard of care,no doubt, will be seriously affected not only by the state ofscientific knowledge as to the causes and effects of air pollutionbut also by the state of technology and the extent to which pre-vailing pollution control devices are effective and economicallyfeasible.

DOCTRINE OF STRICT LIABILITY

The rule in Rylands v. Fletcher, 42 although normally dealtwith as a separate tort, can be considered as an extension of thelaw of unisance. The rule enunciated by Blackburn, J. in thatcase is that "the person who for his own purpose brings on hislands and collects and keeps there anything likely to be a mischiefif it escapes, must keep it at his peril, and if he does not do sois prima facie answerable for all the damage which is the naturalconsequence of its escape". Use of care, skill and public benefitare not defences. However, "the act of God" excludes liabilityunder the rule in Rylands v. Fletcher.'"

The doctrine of strict liability - liability without fault - isworth considering in relation to cases arising from environmentalpollution. In Waschak v. Moffat," hydrogen sulphide gas wasemitted from two of the defendant's culm banks which damaged

258 F. 2d 321, (9th Cir.) cert. denied, 358 U.S. 840 (1958), as citedin James E. Krier, op. cit., pp. 170-171.D.C. Or., 93 F. Supp. 779 as cited in James E. Krier, op. cit.,pp. 153-154.(1868) L.R. 3 H.L. 330.Ibid.379 Pa. 441, 109 A. 2d 310 (1954) as cited James E. Krier, op. cit.,p. 87.


the paint on plaintiff's dwelling. The defendant did not knowand had no reason to anticipate the emission of the gas and theresults which might follow. The Supreme Court held theplaintiff liable on the ground that a different chemical content inthe foreign coal which the defendant brought to the borough andprocessed there, accounted for the presence of the gas in theatmosphere. The Supreme Court of Pennsylvania distinguishedthree theories for allowing recovery against one from whoseproperty material has escaped without negligence or fault andcaused damage to another:

The English rule of Rylands v. Fletcher

Absolute Nuisance DoctrineRestatement Rules.

Under the cover of "absolute nuisance" in Rylands v.Fletcher,45 the concept of strict liability has gained acceptance inthe majority of American jurisdictions.

An activity is hazardous if it (a) necessarily involves a riskof serious harm to the person, land or chattels of others whichcannot be eliminated by the exercise of utmost care and (b) isnot a matter of common usage. In Fritz v. E. I. du Pont deNemous and Company, 46 the plaintiff suffered injuries fromchlorine gas and fumes which escaped in a manner unknown tothe defendant. The court held47 that the use of chlorine gaswas not so unusual and that the defendant should have becomeliable as an insurer in case of injury. The "common usage"limitation is of doubtful utility in cases where the principle ofstrict liability is applied. 48

Scope of the rule

The rule in Rylands v. Fletcher," was meticulously inter-preted by later decisions. It was applied to a variety of

See supra n. 42.45 Del. 427, 75A. 2d 256 (1950) as cited in James E. Krier, op, cit.,p. 173.Ibid.Rodgers, op. cit., p. 161.See suprc, n. 42.


circumstances." Damage due to fire, gas, explosions, electri-city," oil, noxious fumes, 52 colliery spoi1, 53 rusty wire froma decayed fence,54 vibrations, 55 poisonous vegetation 56 etc. wereheld to be coming under this doctrine. Lord Viscount Simonstated" that Rylands v. Fletcher 58 was conditioned by two ele-ments which he called (a) "the condition of 'escape' from theland of something likely to do mischief if it escapes", and (b)"the condition of `non-natural' use of the land". Unless there isan "escape" of the substance from the land of the defendantwhere it is kept, there is no liability under the rule and the non-natural use must be some special use bringing with it increaseddangers to others and must not merely be the ordinary use ofthe land or such a use as is proper for the general benefit of thecommunity.59

The court must investigate not only the reasonableness ofthe accumulation but also the defendant's responsibility for itsactual escape.

CONCLUSIONS AND SUGGESTIONS

The courts' tendency to balance hardships and deny injunc-tions and lack of "standing" to sue are factors which make thenuisance law inadequate to control widespread pollution. In

For a list of cases where the rule has been applied see Stallybrass,"Dangerous Things and the Non-natural User of Land", (1929) 3Camb. L.J. 376 at 382-385.

Eastern and S. African Telegraph Co. Ltd. v. Cape Town TramwaysCompanies Ltd., [1902] A.C. 381.

West v. Bristol Tramways Co., [1908] 2 K.B. 14.

Attorney General v. Cory Bros Ltd., [1921] 1 A.C. 521.

Firth v. Bowling Iron Co., (1878) 3 C.P.D. 254.

Hoare & Co. v. Mc Alpine [1923] 1 Ch. 167.

Crowhurst v. Amersham Burial Board, [1978] 4 Ex. 5.

Read v. J. Lyons & Co. Ltd., [1946] 2 All E.R. 471, at p. 474.

See supra n. 42.

See also Note, "The Rule in Rylands v. Fletcher", [1947] 63 L.Q.R.160.


private actions on public nuisance, "special injury" is to beproved if the action is to succeed. The "special injury" sufferedby the plaintiff must be different in kind from that suffered bythe general public and not just different only in degree. If theeiurts insist on this, the nuisance action by private individualsagainst pollution, against air pollution in particular, will be lesseffective. Still another difficulty is the burden of proving materialharm attributable to unreasonable conduct of the defendant sinceit is impossible to point out any particular polluter responsiblefor the poor air or water quality.

•The common law action of trespass is not suited to deal

with the general issues or questions of environmental degrada-tion in view of the fact that it requires some direct physical inter-ference by one against the person or property of another.Environmental degradation tends, generally, to be indirect in itsnature and effect. Persons aggrieved by it may find it difficult toestablish a successful legal action for trespass. The requirementtbat an aggrieved party has to prove that there is a causal con-nection between the negligent act and the plaintiff's injury makesit extremely difficult for the plaintiff to succeed in an action fornegligence. The degree of reasonable care depends on variousfactors taken into consideration by the courts in deciding thematter. Moreover the standard of care is seriously affected notonly by the state of scientific knowledge as to the causes andeffects of air and water pollution but, also by the state of techno-logy and the extent to which prevailing pollution control devices'are effective economically and feasible.

The Rylands rule has a more restricted application thanthose rules applied in nuisance cases. To invoke the Rylandsrule there must be an accumulation of pollutants and it must beof a nuisance, likely to cause injury if it escapes. The problemto be resolved in pollution cases is however different. The pro-blem is to control or prevent pollution, rather than to decidethe liability of the wrong doer. Insurance against abnormallydangerous harm may be a proper remedy in deciding the ques-tion of liability. Considering the pollution problem in its totality,interests of the public may considerably overshadow the interests


of the parties concerned. When such a situation occurs, a soundpollution control programme is called for. This requires that thepublic point of view be searched out and decisions be taken inthe light the social policy.

The inherent inability of courts to deal efficiently withissues of a scientifically complex nature is another problem. Inenvironmental degradation situations, often a considerable timeelapses before symptoms of disease caused from pollutionbecome manifest. The chemical, biological, physiological andother scientific evidence required to prove the causal connectionbetween the alleged discharge of pollutants and the harm causedto the plaintiff is often highly technical. It may be impossiblefor even the most alert judge to assimilate and evaluate them.There are other difficulties like high costs of litigation, limitedadministrative capabilities etc. which make judiciary an unfitorgan to provide adequate remedies.

The policy adopted by the government also has an import-ant role to control or prevent environmental pollution. Thereshould be insistence on observance of uniform methods of pollu-tion control methods by all persons engaged in one industry.Selective approach may not be successful for the reason that costof production incurred by an industry is connected with themethod of pollution control adopted which ultimately affects theprice of the product.

It is suggested to create expert bodies and entrust them withthe task of ensuring protection and development of environment.They may be urged to hold public hearing while settling stand-ards and drafting plans for implementation.

In addition to these expert bodies, special courts should becreated to deal with common law action against environmentalpollution. The success of the endeavour against pollution dependsmainly on the civic consciousness of the people and on the recog-nition of good environment and ecological balance in nature.

Mode of Citation [1984] C.U.L.R.

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Environmental Pollution and Common Law Remedies